ByLawyers News and Updates

Care planning – VIC

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Two new By Lawyers advance care planning precedents provide for an advance care directive and an appointment of medical decision-maker to be signed at the direction of the principal.

The Medical Treatment Planning and Decisions Act 2016 (the Act) gives statutory recognition to advance care directives and provides a mechanism of medical treatment decision-making for people without decision-making capacity. The legislative framework has three components:

  • Advance care directive – allows for specific instruction on the treatment that a person consents to, or refuses, and a statement of their preferences and values.
  • Medical treatment decision maker – allows a medical treatment decision-maker to make decisions on behalf of a person who no longer has decision-making capacity.
  • Support person appointment – allows for the appointment of a support person to assist someone to make decisions for themselves, by collecting and interpreting information, or by assisting the person in communicating their decisions.

There is no requirement under the Act to make an advance care directive at the same time as an appointment of a medical treatment decision-maker, but if making an advance care directive before or at the same time as the appointment of a medical treatment decision maker, the appointee has to confirm they have read and understood it.

As with any instrument, the principal can execute an advance care directive or an appointment of a medical decision-maker by directing someone to sign on their behalf. Given the nature of these documents, execution by direction is not uncommon. Precedents for this purpose have been added to the matter plan, with witness certifications drafted to take into account the change in the process if the appointment is signed by someone else at the direction of the person making the appointment.

These new advance care planning precedents Advance care directive – Signing by direction and Appointment of medical treatment decision maker – Signing by direction can be found in folder D. Advance care directive, medical treatment decision maker and support person appointment on the Powers of Attorney and Advance Care Directives (VIC) matter plan.

Enduring guardian – TAS

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Changes to appointments of enduring guardian under the Guardianship and Administration Amendment Act 2023 commenced on 1 September 2024.

New sections relating to appointments of enduring guardian

The amending Act inserts the following new sections into the Guardianship and Administration Act 1995 that relate to appointments of enduring guardian:

  • Section 5 defines the meaning of promoting a person’s personal and social well-being.
  • Section 6 inserts a definition of health and medical research.
  • Section 7 updates the Act’s objects to protect and promote the rights and dignity of persons who have impaired decision-making ability by reference to matters such as the Convention on the Rights of Persons with Disabilities, principles and procedures to be observed, and requiring that persons with impaired decision-making and their families are informed of and make use of the Act’s provisions.
  • Section 8 inserts principles to be observed by a guardian, such as a person’s decision-making ability, views, wishes, and preferences, and their personal and social well-being being respected and promoted.
  • Section 9 inserts a decision-making process to which a guardian must have regard in determining whether to make a decision for the appointer, and the matters to be taken into account when making the decision.
  • Section 11 sets out criteria for determining whether a person has decision-making ability, or has impaired decision-making ability. An adult is presumed to have decision-making ability unless a person or body responsible for assessing that ability determines otherwise.
  • Section 27A inserts obligations on the guardian to keep records of dealings and transactions made by the person as guardian. It provides a former guardian may give a copy of the records to a new guardian, the former represented person, to legal representatives, or persons responsible. It provides a penalty provision for circumstances in which this obligation is not met.

Amended sections relating to appointments of enduring guardian

The amending Act amends existing sections of the Guardianship and Administration Act 1995 that relate to appointments of enduring guardian:

  • Section 3 now includes a definition of close family member that includes adults of Aboriginal or Torres Strait Islander descent related to a person by kinship rules.
  • Section 26 now provides that a guardian must:
    • act in accordance with the Act’s principles;
    • promote the personal and social well-being of the represented person;
    • have regard to the Act’s decision-making process;
    • act honestly and in good faith;
    • communicate with the person by means they are best able to understand;
    • keep the represented person informed;
    • regularly consult with any other guardian or administrators of the person;
    • act as an advocate for the represented person where possible;
    • encourage the person to develop their decision-making ability;
    • protect the represented person from violence, abuse, neglect or exploitation.
  • Subsection 26(2) requires a guardian to ascertain whether the represented person has an advance care directive and to obtain a copy if so.
  • Section 27 provides for the right of a guardian to have access to all information to which the represented person is entitled, if the information is required for performing a function as guardian.
  • Section 32 now includes a requirement that the appointor of an enduring guardian to understand the nature and effect of the enduring guardianship instrument. It also sets out the matters the appointor is to understand about the nature and effect of the instrument, updates the witnessing requirements to make them consistent with those for appointment of an enduring power of attorney, and provides for the powers conferred on appointees and the circumstances in which the powers under the instrument are enlivened.
  • Section 32B removes the requirement for the appointor to have a disability and be able to make reasoned judgements as a condition of the enduring guardian having rights to access information and replaces it with a requirement that the appointor has impaired decision-making ability. It further provides for the circumstances in which an enduring guardian has a right to obtain the appointor’s will from another person.

New prescribed form

The prescribed form for an appointment of enduring guardian has been amended.

These amendments have all been incorporated into the commentary in the By Lawyers Powers or Attorney, Enduring Guardianship and Advance Care Planning (TAS) publication, and in the Appointment of Enduring Guardian precedent on the matter plan

Advance care directives – TAS

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Advance care directives made under the laws applicable in some other Australian states will now be recognised in Tasmania.

Section 35ZN of the Guardianship and Administration Act 1995 provides that a validly made interstate advance care directive that has substantially the same effect as instruments under the Act can, by notice published in the Gazette, be recognised in Tasmanian.

The Gazette notice Advance Care Directives Corresponding Laws published on 22 May 2024 provides for the recognition in Tasmania of advance care directives made in the following states and territories:

  • Australian Capital Territory;
  • Queensland;
  • South Australia;
  • Victoria;
  • Western Australia; and
  • Northern Territory.

The By Lawyers Powers of Attorney, Enduring Guardianship, and Advance Care Planning (TAS) guide has been updated accordingly.

Advance care directives – TAS

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A legal framework for advance care directives has been introduced in Tasmania. This brings Tasmania into line with the mainland states.

The Guardianship and Administration Amendment (Advance Care Directives) Act 2021 commenced on 21 November 2022. It amends the Guardianship and Administration Act 1995.

The purpose of the act and advance care directives for which it provides is to:

  • enable persons with decision-making ability to give directions about their future health care;
  • enable persons with decision-making ability to express their preferences and values in respect of their future health care, including by specifying outcomes or interventions they wish to avoid;
  • ensure that health care accords with a person’s directions, preferences and values; and
  • protect health practitioners and others giving effect to the directions, preferences and values of the person receiving care.

Amendments have been made to the By Lawyers Powers of attorney, enduring guardianship, and advance care planning (TAS) publication, including:

  • New commentary on advance care directives covering:
    • a summary of the legal framework and general principles;
    • the formal requirements, including witnessing and execution;
    • registration with the Tasmanian Civil and Administrative Tribunal; and
    • amendments and revocation;
  • Advance care directive statutory form added to the matter plan;
  • New Revocation of advance care directive and letters notifying relevant parties of the revocation;
  • Amended Retainer instructions to record the client’s instructions;
  • Amended Enclosure – Instructions for signing to add advance care directive signing requirements; and
  • Amended Appointment of enduring guardian to reflect the changes to s 32 of the Guardianship and Administration Act 1995 relating to the endorsement of guardians. This applies to all appointments made from 21 November 2022.

ACT – Powers of Attorney, Appointment of Guardians and Managers and Advance Care Planning – New publication

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Our ACT author, Doug Dawson, has now prepared Powers of Attorney, Appointment of Guardians and Managers and Advance Care Planning (ACT).

This useful publication allows the practitioner to take instructions via a comprehensive and methodical instruction sheet, then confidently advise upon and prepare appropriate powers of attorney, guardianship and/or management applications and advance care plans.

The publication includes a matter plan, a practical commentary to guide you and a full suite of precedents.

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